Cyber Jurisdiction
In law, jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.
Or in common English: Jurisdiction is the authority given to a legal body, or to a political leader (Prime Minister, President, etc.) to deal with legal matters, and to pronounce or enforce legal matters.[1]
Because cyberspace has no geographical boundaries, it establishes immediate long-distance communications with anyone who can have access to any website. Usually an internet user has no way of knowing exactly where the information on a site is being accessed from. Here, i.e., in cyberspace, jurisdiction issues are of primary importance. As Internet does not tend to make geographical and jurisdictional boundaries clear, Internet users remain in physical jurisdictions and are subject to laws independent of their presence on the Internet. Therefore, any kind of use of the World Wide Web and any related activities on the internet may expose the person to risk of being sued in any state or foreign country where another internet user may establish a claim. Accordingly, in each case, a determination should be made as to where an online presence will subject the user to jurisdiction in a distant state or a foreign company. As such, a single transaction may involve the laws of at least three jurisdictions: 1) the laws of the state/nation in which the user resides, 2) the laws of the state/nation that apply where the server hosting the transaction is located, and 3) the laws of the state/nation which apply to the person or business with whom the transaction takes place. So a user in one of the United States conducting a transaction with another user in Britain through a server in Canada could theoretically be subject to the laws of all three countries as they relate to the transaction at hand
Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not coextensive with it. The laws of a nation may have extra-territorial impact extending the jurisdiction beyond the sovereign and territorial limits of that nation. This is particularly problematic as the medium of the Internet does not explicitly recognize sovereignty and territorial limitations. There is no uniform, international jurisdictional law of universal application, and such questions are generally a matter of conflict of law, particularly private international law. An example would be where the contents of a web site are legal in one country and illegal in another. In the absence of a uniform jurisdictional code, legal practitioners are generally left with a conflict of law issue.
The internet would be considered as multi-jurisdictional because of the ease with which a user can access a Web-site anywhere in the world. It can even be viewed as a jurisdictional transparent.[2] For courts determining jurisdiction, however, this situation is more problematic. The court, in Zippo Mfg. v. Zippo Dot Com.Inc.[3] Said that, “there is a global revolution looming on the horizon, and the development of the law in dealing with the allowable scope of personal jurisdiction based on Internet use is in its infancy.”
The developing law of jurisdiction must address itself to the granite whether a particular event in cyberspace is controlled by the laws of the state or country where the website is located, by the laws of the state or country where the internet service provider is located, by the laws of the state or country where the user is located, or perhaps by the of these laws.[4]
Thus the major problem of cyber law lies in whether to treat the Internet as if it were physical space, and thus subject to a given jurisdiction's laws, or to act as if the Internet is a world unto itself, and therefore free of such restraints. Those who favor the latter view often feel that government should leave the Internet community to self-regulate. John Perry Barlow, for example, has addressed the governments of the world and stated, "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different"[5]. A more balanced alternative is the Declaration of Cyber-secession: "Human beings possess a mind, which they are absolutely free to inhabit with no legal constraints. Human civilization is developing its own (collective) mind. All we want is to be free to inhabit it with no legal constraints. Since you make sure we cannot harm you, you have no ethical right to intrude our lives.”[6] Other scholars argue for more of a compromise between the two notions, such as Lawrence Lessig’s argument that "The problem for law is to work out how the norms of the two communities are to apply given that the subject to whom they apply may be in both places at once" [7]
But it is seen that in practical terms, a user of the Internet is subject to the laws of the state or nation within which he or she goes online. Thus, in the U.S., Jake Baker faced criminal charges for his e-conduct, and numerous users of peer-to-peer file-sharing software were subject to civil lawsuits for copyright infringement. This system runs into conflicts, however, when these suits are international in nature. Simply put, legal conduct in one nation may be decidedly illegal in another. In fact, even different standards concerning the burden of proof in a civil case can cause jurisdictional problems. For example, an American celebrity, claiming to be insulted by an online American magazine, faces a difficult task of winning a lawsuit against that magazine for libel. But if the celebrity has ties, economic or otherwise, to England, he or she can sue for libel in the British court system, where the standard of “libelous speech” is far lower.
[1] http://en.wikipedia.org/wiki/Cyber_law
[2] David Post, Anarchy, State, and the Internet: An Essay on Law making in Cyberspace, (1995) J. Online L. art. 3, Para. 36.
[3] Zippo Mfg. v. Zippo Dot Com.Inc.,952 F. Supp. 1119 (W.P.Pa. 1997)
[4] David R. Johnson and David Post, Law and Borders- The Rise of Law in Cyberspace, 48 Stanford L. Rev. 1367 (May 1996)
[5] John Perry Barlow, A Declaration of the Independence of Cyberspace, February 8, 1996
[6] http://editthis.info/cybersecession/An_Introduction_to_Cybersecession
[7] Lessig, Code 190
About the Author
Mridula R. Ravindran
Final Year Law Student
Army Institute of Law
India.
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